Briefs filed in Virginia same-sex marriage appeal

Virginia's potential landmark gay marriage case continued on its path through the federal court system Friday with new arguments filed in favor of the state's ban on same-sex marriage.

States have the right to define marriage as they see fit without federal intervention, attorneys for clerks whose duties include enforcing Virginia's gay marriage ban argued in lengthy filings. Forcing a new and genderless definition on marriage would "have real world consequences over time," attorneys for Prince William County Clerk of Circuit Court Michele McQuigg argued.

No one can know for sure what those effects would be, they wrote. But, if the state signals that marriage's primary purpose is "to affirm adult relationships rather than provide for children's needs," then it also conveys indifference as to whether children are raised by both a mother and a father, they argued.

"As the law and the commonwealth convey these messages, it is likely that, over time, fewer man-woman couples having or raising children will marry, that marriages will become less durable, and that fewer children will be raised in stable homes headed by their married mother and father," they wrote.

McQuigg joined this case of her own volition, requesting the court's permission to intervene. She's a co-defendent now along with Norfolk Clerk of City Court George Schaefer III, who was named in the original suit by a Hampton Roads gay couple, Timothy Bostic and Tony London.

Bostic and London were denied a marriage license from the Norfolk clerk's office last year. Their case has since been consolidated with another Virginia case and become a class action suit.

Earlier this year Attorney General Mark Herring took Virginia from one side of this argument to the other, saying he'd no longer defend the state's constitutional amendment banning gay marriage. Shortly after, a federal judge ruled that ban unconstitutional, but gay marriages haven't been allowed in Virignia because the case is working its way through appeals court.

Some believe the case will eventually wind up before the U.S. Supreme Court, where it could decide the issue of gay marriage for the whole country.

Schaefer has been less strident in his defense than McQuigg. His attorney's filing Friday goes out of its way to note that he's simply enforcing the law.

It also makes a number of procedural arguments, saying some of the case's plaintiffs have no standing against Schaefer, since he never denied them marriage licenses. It also argues that states should be able to decide this issue.

"Marriage to another person of the same sex is not a fundamental right," the brief states.

"States have the right to define marriage, and if they choose to allow same-sex marriage or other non-traditional concepts of marriage, they are free to do so," it states. "However, the states cannot be compelled to alter the idea of marriage to include same-sex couples."

If the traditional definition of marriage is changed, it leads to some strange places, the brief argues.

"Then what is the purpose in prohibiting marriage between persons of close kinship?" it asks. "Would it then be unconstitutional for two brothers who are confirmed bachelors and live together to marry so that they could own property as tenants by the entireties, file joint tax returns, qualify for health benefits, and obtain better insurance rates? Certainly these brothers have the capacity to form a long-term loving and lasting relationship."

Friday was the deadline for the clerks to file initial arguments in this case. Those arguing against the ban are expected to file briefs next month, and oral arguments are scheduled for May.